§ (".—(1) The Secretary of State may make regulations for the purpose of prohibiting, in relation to any employment matter, discrimination by an employer against another person on grounds of that person's sexual orientation.
§ (2) In subsection (I) "employment matter" includes—
- (a) the offer or refusal of employment;
- (b) the termination of employment;
- (c) terms and conditions of employment;
- (d) the provision of training or skills development opportunities;
- (e) promotion and career progression.
§ (3) Regulations under subsection (1) may—
- (a) specify the types of action, or failure to take action, which are to be taken to constitute discrimination for the purpose of this section;
- (b) confer jurisdiction (including exclusive jurisdiction) on employment tribunals and on the Employment Appeal Tribunal in relation to cases brought under this section;
- (c) provide for penalties to be imposed or, as the case may be, compensation to be awarded in respect of offences committed under paragraph (a) above.
§ (4) No regulations shall be made under this section unless a draft has been laid before, and approved by resolution of, each House of Parliament.")
§ The noble Lord said: As was indicated earlier, this is the second of the anti-discrimination measures that I am proposing should be inserted into the Bill by way of amendment. The position with regard to discrimination on the ground of sexual orientation, which this amendment is designed to cover, is somewhat different 346 from the position that we covered on the previous amendment which dealt with discrimination on the ground of age.
§ In these days of quite extensive anti-discrimination legislation, it would probably come as a surprise to many people to know that as the law currently stands neither lesbians nor gay men have protection in the workplace in any of the following areas. To decide not to appoint someone because of their sexuality is not currently unlawful. To treat someone less favourably in the workplace because of their sexuality is not currently unlawful. To harass someone in the workplace because of their sexuality is not unlawful. To pay someone less because of their sexuality is not unlawful, and it is not per se unlawful to dismiss someone because of their sexuality. I suspect that Members of the Committee would regard that as a surprising state of affairs in the current context of our anti-discrimination legislation in other areas.
The Government's position on this is fairly straightforward. In June 1998 when we considered the Bill on sexual orientation and discrimination—that Bill did not become law because although passed in this House it did not have time to complete its passage through another place—speaking for the Government, the noble Baroness, Lady Blackstone, stated:
At this stage … promise that the Government are committed to giving serious consideration to the issues raised by this Bill".—[Official Report, 5/6/99; col. 657.]
§ I do not want to detain the Committee long on this amendment because at Second Reading the Minister explained that this was not a matter for the DTI. which is sponsoring the Bill, and that another department, the Department for Education and Employment, would be dealing with these issues. I regard that as slightly strange given that we are led to believe that this is a period of "joined up" government, to adopt the phrase used by several noble Lords and Ministers. Nevertheless, I look forward to the Minister's reply and to hearing when we can expect at the very least a voluntary code of practice to bring this into line with the anti-age discrimination code which is already in place. I should like to know what action the Government propose to take. For all the same reasons that the previous amendment was moved and could be justified, I should have thought that there is a case for putting on the statute book the power for the Government to legislate in this area if a voluntary code of practice does not prove to be sufficient.
§ On the point raised by the noble Lord, Lord McCarthy, there is a distinct difference between the difficult areas of age discrimination and the necessity to include the defence for which we provided in the previous amendment and the question of legislation on the ground of sexual orientation where the issues are likely to be much more clear cut and the protection need not therefore be provided for employers. I beg to move.
I wonder whether the noble Lord intends his amendment to apply to two areas. I refer to the Armed Services and to the whole of the education service. A number of people, particularly in education, would be concerned if the provisions of the amendment applied to schools, given that that might affect very 347 small children and children up to the compulsory school leaving age. It would be helpful to have this point clarified and to hear the Government's view on both matters.
§ Lord Sainsbury of Turville
I am very well aware that in comparison with measures to prohibit discrimination on grounds of sex, race and disability, there is a gap in the protection that we offer some individuals. The Government deplores discrimination on the basis of sexual orientation and the treatment which some gay men and lesbians experience.
That said, we do not believe that this Bill is the appropriate vehicle for this large new topic. It would be a radical step away from the intentions which we set out and on which we consulted in the Fairness at Work White Paper, and would clearly require extensive consultations in its own right. As has been said, the amendment raises substantial issues in several areas which require careful consultation, particularly with regard to the Armed Services and education.
We shall want to consider the issue further in the context of wider European developments. I have already referred to new Article 13 in the Amsterdam Treaty. Now that the new treaty is in force, the Commission is able to bring forward recommendations and we expect it to take a positive interest in doing so. It may address the problems which concern the noble Lords, Lord Razzall and Lord Meston, the noble Viscount, Lord Thurso, the noble Baroness, Lady Turner, and the Government, although clearly we cannot commit ourselves at this stage to accepting each and every measure that the Commission may propose.
As noble Lords are aware, the Equal Opportunities Commission formally presented to the Government last November its recommendations following a review of sex equality legislation. Those included a proposal that there should be specific legal protection for lesbians and gay men. The Government, particularly the Department for Education and Employment which leads on the policy, are carefully considering this and the EOC's other recommendations. We strive to achieve joined-up government, but that is no reason to have a confusion of responsibilities with regard to which department leads on such legislation.
We are also considering the suggestion from the Better Regulation Task Force of a non-statutory code of practice. The task force is generally in favour of making current legislation work better. It also points out the importance of evaluating a code of practice before taking any further steps.
I have shown that it is too early to be clear whether a legislative measure would be the appropriate way to proceed. However, I reassure the Committee that we want to be sure that in removing injustice, we are doing so thoughtfully and in full knowledge of the impact of the legislation. That would require full consultation with many relevant parties such as industry, the forces and the Churches.
For that reason, I regret that the Government cannot support the new clause. I hope that those proposing the amendment are reassured of our commitment to act in 348 this area. Our differences are over the means rather than the objectives. I trust that the amendment will be withdrawn.
I am glad that the Minister said that there were problems with this amendment. I do not think that he need regret too much the fact that he is unable to accept it. I am glad that he referred to education, following the comment made by my noble friend Lady Young. Perhaps I may declare an interest as a Fellow of Winchester College, which is a single-sex school. If someone applied to be a master there and the headmaster was obliged not to refuse that applicant on the ground that he was a homosexual, the position would be intolerable. Although it may be perfectly reasonable to protect those of different sexual orientations, it is essential to protect young people, particularly at school. Therefore, I hope that the Minister will not forget that matter when he considers this in greater detail.
§ Lord Sainsbury of Turville
I hope that I made it clear that before we proceed on this, we shall consider carefully all the important issues which the amendment raises.
§ Lord Razzall
I think that there has been some misunderstanding on the part of the noble Baroness, Lady Young, and the noble Earl in relation to the purpose of this new clause. In moving the amendment, it was never my intention (or that of my supporters) to suggest that the issues raised by the noble Baroness and the noble Earl were not matters on which the Government should consult extensively before bringing forward legislation in the form of the regulations provided for by my amendment. There was no doubt at all about the fact that that must take place. The issues raised by the noble Baroness and the noble Earl are clearly complex and need to be subject to consultation.
If, following the passage of this comprehensive Bill, it is thought necessary, rather than relying simply on voluntary codes of practice, to introduce regulations to deal with these complex issues, the Government should take the necessary powers. However, on the basis of the progress that I think we have made in discussion with the Minister, I am happy to beg leave to withdraw the amendment at this stage—
Before the amendment is withdrawn, the noble Lord said that these are complex issues; but some of them are absolutely straightforward and simple.
§ Amendment, by leave, withdrawn.
§ 7 p.m.
Lord Razzall moved Amendment No. 273:
After Clause 13, insert the following new clause—